Bankruptcy Adversary Proceeding
The trial court erred in rendering summary judgment in favor of the defendant under the doctrine of res judicata. The defendant was not a party to the prior action, which involved an adversary proceeding between the plaintiff and a debtor in bankruptcy. Defendant is also not in privity with the debtor. Even under relaxed privity standards of mutuality of interest, the defendant is not entitled to the benefit of res judicata, because he would not have been bound by a judgment rendered in the bankruptcy case. Reversed and Remanded.
A non-final decision in state court will not prevent the assertion of claims in a bankruptcy proceeding, explained U.S. Bankruptcy Judge Carl L. Bucki in his decision in In re: John David Douds; Gibraltar Industries, Inc. f/k/a Gibraltar Steel Corp. v. John David Douds. The U.S. Bankruptcy Court for the Western District of New York reached this conclusion after reviewing the debtor's motion to dismiss or for summary judgment in the adversary proceeding filed by a company that brought a breach of contract action against the debtor and other defendants in state court. Although a state court appeal pertaining to the defendants' liability for breach of contract was finalized, it did not affect the debtor since he was no longer a party to that appeal due to the automatic stay created when he...
The US Bankruptcy Code grants broad rights and powers to an official committee of unsecured creditors in a chapter 11 bankruptcy case. Among the statutory entitlements of a creditors' committee is the right, pursuant to 11 USC Section 1109, to raise and appear and be heard on any issue in a case under chapter 11. In the seminal case of In re Marin Motor Oil Inc the court held that a creditors' committee has an absolute right to intervene in an adversary proceeding arising out of a chapter 11 bankruptcy case. It remains uncertain whether the Second Circuit's decision will turn the tide of judicial opinions back towards favoring the Marin holding. This article analyzes those arguments and ultimately concludes that the Marin holding, allowing an absolute right of intervention to all partie...
A Florida law authorizing recovery of attorney fees by prevailing defendants applies to a legal malpractice claim filed in a core bankruptcy proceeding, the 11th Circuit has ruled. The plaintiff filed a legal malpractice complaint as an adversary proceeding in bankruptcy court against the law firm that represented her regarding assets that were at issue in the bankruptcy case. Before trial, the firm sent the plaintiff an "offer of judgment" offering to settle the case for $10,000. The plaintiff rejected the offer.
Bankruptcy: Adversary Proceeding - Timeliness - Law Of The Case Myers v. Raynor (MLW No. 59191/Case No. 09-6012 - 11 pages) (U.S. Bankruptcy Appellate Panel, Kressel, J.)
...A plan proposed under Bankruptcy Code (Code) Chapter 13 becomes effective upon conf... this undue hardship determination in an adversary proceeding, see Fed. Rule Bkrtcy. Proc. 7001(6), w...
Arbitration continues to play a role in bankruptcy cases. The latest decision comes out of the 2nd Circuit. In MBNA America Bank, N.A. v. Hill, 2006 WL 172213, the 2nd Circuit held that the bankruptcy court should have enforced an arbitration clause in an amendment of a consumer credit agreement, since the court lacked discretion to deny a stay of an adversary proceeding pending arbitration. This case follows on the heels of another pro-arbitration consumer bankruptcy decision, this one by the 3rd Circuit. This case, Mintze v. American General Financial Services, 2006 WL 45844 (2006) also involved a consumer.
A debtor's student loans are dischargeable under [section]528(a)(8) because paying them would impose an undue hardship on the debtor and her dependents, the 8th Circuit Bankruptcy Appellate Panel has ruled. The debtor received a discharge for her Chapter 7 bankruptcy petition in 2004. Three years later, she filed an adversary proceeding seeking to discharge $300,000 in student loan debt as an undue hardship pursuant to [section]528(a)(8). She claimed that her family operated at a loss each month, and that she couldn't work outside the home because she had to take care of her five children, especially twin boys who suffered from autism.
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